82.48

OPINION NO. 82-48

An opinion request has been received as to whether an egg inspector for the Department of Agriculture (DAGR or the Department) may hold part-time employment with local grocery stores near his home.

The Requestor here is an egg inspector in DAGR's Office of Animal Health and Consumer Services. His duties involve carrying out DAGR's responsibilities under the Maryland Egg Law (Agriculture Article, 4-301—4-312, Annotated Code of Maryland) and its implementing regulations (COMAR 15.04.01.01—.05. These provisions apply to all sellers of eggs at either wholesale or retail, and establish size and weight classifications for shell eggs, standards of quality for shell eggs, and labelling requirements for all such eggs sold or offered for sale in the State.

The Department employs seven full-time or part-time inspectors to enforce these regulatory provisions. Three part-time inspectors cover the areas east of the Chesapeake Bay and Washington County and west; the four full-time inspectors cover the more populous area in between, and are each in turn assigned to a specific territory based on the number of egg sellers. The Requestor is assigned to a territory in the southern portion of the State. Inspectors are responsible for conducting field inspections of any store, warehouse, distribution center or other facility that offers shell eggs for sale. This would include large supermarkets such as Safeway or A&P, smaller stores such as a 7-Eleven or corner market, roadside markets that sell eggs, and warehouses or packaging centers that distribute to any of these facilities.

The Requestor wishes to supplement his income by part-time employment at two grocery stores near his home. He states that these stores both sell eggs inspected by DAGR, but that they are not in his inspection jurisdiction, nor do they receive eggs from warehouses within his inspection area. He also indicates that the stores do not have any branches in the area of his inspection responsibilities. The Requestor states that he proposes to do purely manual type work, primarily stocking shelves; he does not envision any management or other involvement with these employers.

The question here is application of §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law), and particularly our recently promulgated regulations establishing criteria for exception from its prohibitions. (COMAR 19A.02.01, 9:15 Md. R. 1517 (July 23, 1982). We believe that the Requestor's proposed employment with food retailers is within the general prohibition of §3-103(a)(1)(i), as such businesses are subject to substantial regulatory authority of DAGR, and particularly of the Division within the Department where he works. The question, then, is whether the situation presented here is appropriately excepted from the prohibition pursuant to the Law's provision permitting employment "by regulation of the Commission...where such employment does not create a conflict of interest or the appearance of conflict."

Regulations implementing this exception provision were issued by the Commission effective August 2, 1982. They set forth several criteria identifying circumstances where the relationship between an employee's outside employment and his agency would be so remote that a conflict of interest or appearance of conflict would be unlikely. They allow exception, for example, where the employee's official duties involve no significant impact on his outside employer, and where his outside position is not directly funded by a contract with his State agency. (See our Opinion No. 82-40 for a more detailed discussion of the exception criteria.) The regulatory procedure requires review and determination regarding each factor in order to conclude that the absence of the relationships supports a finding that no conflict or appearance thereof exists.

We have considered the application of these exception criteria to the Requestor's proposed employment. In our view only two, items B and D, raise issues that could prevent application of the criteria to overcome the §3-103(a)(1)(i) prohibition. Item B deals with situations where an employee is directly supervised by a person who has duties that directly impact on the outside employer; item D addresses situations where an employee is affiliated with the specific unit within his agency that exercises authority over his outside employer. The Requestor serves in the Grading Services and Inspection Division, which is the unit that inspects grocery stores; also, his immediate supervisor has general management responsibility for the program and supervises others who will inspect the Requestor's private employer. The regulations provide, however, as to these two items, that application of them may be avoided where the "head of the agency involved specifies that he believes that there would be no conflict of interest or appearance of conflict that would impair the credibility of the agency, and this view is concurred in by the Commission."

Though the formal mechanism for receiving the agency's views was not in place at the time this request was considered, the Requestor's immediate supervisor and other Department managers were involved in our consideration of this request. The Requestor's supervisor, the Chief of the Grading Services and Egg Inspection Section, has reviewed this situation with the Requestor and the Assistant Secretary for Animal Health and Consumer Services. He indicates that the agency's view is that this employment would not affect agency operations. This is especially so since most agency workers will be involved in daytime inspections and will be working only evenings. We concur with this view, based on the information presented by the Requestor and the Department.

Also, given the nature of the Requestor's outside affiliation, and his assignment to inspect in a different geographical area, we do not believe that any issues are raised suggesting that his impartiality or independence of judgment would be impaired as contemplated under the inconsistent employment provision of §3-103(a)(1)(ii). We therefore advise the Requestor that his employment in a grocery store under the circumstances described to us would not be a violation of §3-103(a)(1)(ii) and would be allowable as an exception to the §3-103(a)(1)(i) prohibition.

Herbert J. Belgrad, Chairman
    Jervis S. Finney
    Reverend John Wesley Holland
    Betty B. Nelson
    Barbara M. Steckel

Date: October 20, 1982